[2013] KEHC 1167 (KLR)
The court determined that it would be unfair to issue a ruling based solely on the documents filed, given the disputed facts regarding the distribution of the estate and the alleged gift inter vivos. The absence of certain parties during key proceedings raised concerns about fairness and due process. Consequently,...
Source-derived case information.
- Citation
- [2013] KEHC 1167 (KLR)
- Parties
- Applicant: Caudencia Makoshi Mango; Respondent: Javan Kuya Anyembe; Respondent: Lily Owano
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 393 of 2002
- Procedural Posture
- Succession Cause / Directions Before Oral Hearing
- Outcome
- Matter to proceed by way of oral evidence; no final determination on the merits at this stage.
- Legal Topics
- Succession, Grant Confirmation, Distribution of Estate, Gifts Inter Vivos
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caudencia Makoshi Mango
Applicant
Javan Kuya Anyembe
Respondent
Lily Owano
Respondent
Procedural Posture
Succession Cause / Directions Before Oral Hearing
Legal Issues
- 1 Whether the distribution of the estate took into account a gift inter vivos allegedly given to a beneficiary by the deceased.
- 2 Whether the grant confirmation and subsequent orders were fair in the absence of certain beneficiaries.
- 3 Whether the dispute requires oral evidence for proper adjudication.
Ratio Decidendi
The court determined that it would be unfair to issue a ruling based solely on the documents filed, given the disputed facts regarding the distribution of the estate and the alleged gift inter vivos. The absence of certain parties during key proceedings raised concerns about fairness and due process. Consequently, the court ordered that the matter proceed by way of oral evidence, allowing both parties to present their cases fully and call witnesses. This approach ensures that the court can make an informed and just decision after hearing all relevant testimony.
Court Disposition
Matter to proceed by way of oral evidence; no final determination on the merits at this stage.
Orders
- The matter shall proceed by way of oral evidence.
- Javan Kuya Anyembe shall be the plaintiff and Gaudencia Makoshi Mango the defendant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
SUCCESSION 393 OF 2002
IN THE MATTER OF THE ESTATE OF DANIEL ANYEMBE alias NANDAH
CAUDENCIA MAKOSHI MANGO ……………………………………………. APPLICANT
V E R S U S
JAVAN KUYA ANYEMBE ……………………………………………….. 1ST RESPONDENT
LILY OWANO ………………………………………………………………. 2ND RESPONDENT
DIRECTIONS
There are two applications filed in this matter. One is dated 20. 9.2012 while the other one is dated 29. 1.2013. Parties relied on the applications and respective replies thereto and urged the court to right a ruling. I have gone through the court file and do find that the grant was confirmed on the 24. 6.2003 when one of the beneficiaries JAVAN KUYA ANYEMBE was not present. Similarly on the 25. 7.2012 when some orders were made which had the effect of replacing the initial petitioner who is now deceased with JAVAN and his sister in-law GAUDENCIA MAKOSHI MANGO, Javan was absent. The essence of the pending application is that the deceased had given one of the beneficiaries plot number MARAMA/INAYA/791 before his death. Javan contends that the distribution was not fair as that gift was not taken into account. I have read the court file and do find that it will be unfair for me to write a ruling based on the information on the file without hearing oral testimonies from the parties.
I therefore order that the matter shall proceed by way of oral evidence. Javan shall be the plaintiff while Gaudencia shall be the defendant. Parties are at liberty to call witnesses. The petition and all documents filed by Gaudnecia shall be the defence while those documents filed by Javan shall be the plaint. The court will only be able to understand the dispute and make an informed decision after hearing the parties herein. The matter to proceed by way of oral evidence.
DATED AT KAKAMEGA THIS 14th DAY OF NOVEMBER 2013
SAID J. CHITEMBWE
J U D G E